1. What does this bill do, and why is it needed in Tennessee?1. What does this bill do, and why is it needed in Tennessee?Tennessee law contains several provisions designed to prevent bullying in K-12 schools (TCA Sections 49-6-1014 through 49-6-1019). These provisions define what constitutes bullying; require school districts to adopt policies prohibiting bullying; and encourage districts to implement bullying prevention programs. To the extent these provisions, and the local district policies adopted pursuant to them, prohibit all forms of bullying for any reason, they are highly commendable.

Some of the provisions, however, could be used to prevent a student from expressing viewpoints that are unpopular, politically incorrect or religiously based. They also could allow a district to implement an anti-bullying program that has the effect of promoting a separate political agenda. For example, anti-bullying laws and policies have been used by activist groups in other states as a tactic to normalize same-sex marriage and promote homosexuality and transgenderism (e.g., cross-dressing) in children as young as elementary-school age.

Further, while state law defines what constitutes bullying, another section in the law requires school districts to include a definition of bullying in their policies. This has been used by some districts to develop definitions that are at odds with the state definition and which protect some children at the expense of others. For example, while the state’s definition properly focuses on factors not related to the characteristics of the victim, some school districts’ definitions place the focus on special categories of victims.1 Placing the focus of anti-bullying policies on certain characteristics of victims provides less, not more protection, for all students from bullies. Children who are vulnerable to being bullied but who do not “fit” within the designated categories will not receive the same protection against bullying, and some will naturally feel more reluctant to report having been bullied.

This bill rectifies those deficiencies in state law. The bill:

Clarifies that unpopular or politically incorrect words do not by themselves constitute bullying;

Makes clear that bullying prevention policies cannot be used to suppress or infringe upon a student’s First Amendment rights, including the student’s right to express religious, philosophical or political views;

Prohibits anti-bullying programs and curriculum that promote a political agenda, or which teach or suggest that certain beliefs are discriminatory when an act or practice based on such belief would not constitute a discriminatory practice as defined under state law;

Prohibits anti-bullying programs and curriculum that make the characteristics of the victim the focus rather than the conduct of the person doing the bullying; and

Provides a uniform definition of bullying that contains objective and measurable standards for what constitutes bullying.

2. How does this bill clarify that unpopular or politically incorrect words do not by themselves constitute bullying?

Tennessee law defines bullying as “any act that substantially interferes with a student’s educational benefits, opportunities or performance … and that has the effect of:

Physically harming a student or damaging a student’s property;

Knowingly placing a student in reasonable fear of physical harm to the student or damage to the student’s property; or

Creating a hostile educational environment.”2

School administrators who may desire to suppress a student’s unpopular or politically incorrect views could deem that student’s expression of such views to be “creating a hostile educational environment.” To clarify that the expression of unpopular or politically incorrect words do not by themselves constitute bullying, this bill adds a provision clarifying that this phrase “shall not be construed to include discomfort and unpleasantness that can accompany the expression of a viewpoint or belief that is unpopular, not shared by other students, or not shared by teachers or school officials.”

3. How does the bill make clear that bullying prevention policies cannot be used to suppress or infringe upon a student’s First Amendment rights?

State law requires school districts to adopt a policy prohibiting bullying and describes what districts must include in such policies.3 The bill adds a new provision that states:

The policy shall not be construed or interpreted to infringe upon the First Amendment rights of students, and shall not prohibit their expression of religious, philosophical, or political views, provided such expression does not include a threat of physical harm to a student or damage to a student’s property.

4. How does this billprohibit anti-bullying programs that promote political agendas, teach or suggest that certain beliefs are discriminatory when they are not discriminatory practices under state law, or focus on the characteristics of the victim?

Tennessee law contains a section that encourages school districts “to form harassment, intimidation or bullying prevention task forces, programs and other initiatives….”4 The bill adds a provision to this section that states:

Harassment, intimidation or bullying prevention task forces, programs and other initiatives formed by school districts, including any curriculum adopted for such purposes, shall not include materials or training that explicitly or implicitly promote a political agenda, make the characteristics of the victim the focus rather than the conduct of the person engaged in harassment, intimidation or bullying, or teaches or suggests that certain beliefs or viewpoints are discriminatory when an act or practice based on such belief or viewpoint would not be a ‘discriminatory practice’ as defined in Section 4-21-102(4).

5. Do Tennessee school districts currently have anti-bullying policies that could prohibit a student’s expression of unpopular or politically incorrect views or of protected First Amendment rights?

Yes, some do. For example, the Knox County (Knoxville) School District has a “Harassment, Intimidation and Bullying” policy that states:

‘Harassment, intimidation or bullying’ means any gesture, written on paper or electronically, verbal, physical or psychological act that takes place on school property … and that:

Is motivated by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability; or,

By any other distinguishing characteristic; and,

A reasonable person should know, under the circumstances, that the act(s) will have the effect of harming an individual or damaging the individual’s property, or placing an individual in reasonable fear of harm to his/her person or damage to his/her property;…5

Under Knox County’s policy, a Christian student’s expression to another student from a different religious background, or simply during a class discussion, that the only way to Heaven is through Jesus could be deemed “harassment, intimidation or bullying” and the student would be subject to discipline, if a school administrator decided that it was motivated by the Christian student’s perception of the other student’s religion and a “reasonable person” should have known that such expression will “have the effect of harming” the other student(s) — whether or not it actually does. Note that under the Knox County policy, “harm” does not have to be physical harm but whatever the administrator decides is “harm.” Thus, if an administrator thinks that one student telling another student that there’s only one way to Heaven or that he or she thinks homosexuality is wrong will cause some undifferentiated, nebulous emotional “harm” to the other student, then the first student’s free speech rights could easily be infringed.

Memphis City Schools also has a policy that could prohibit such speech by students. Its “Student Harassment, Bullying and Intimidation” policy states in part:

Harassment, intimidation or bullying – is defined as any act, written, verbal or physical, or any electronic communication (i.e., cyber bullying) that substantially interferers (sic) with a student’s educational benefits, opportunities or performance … and that:

a) is motivated by any actual or perceived characteristic, including but not limited to, race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, a mental, physical or sensory disability, socio-economic or familial status; and/or….6

Under MCS’s policy, a Christian student’s expression to the effect that the only way to Heaven is through Jesus, or a student’s expression based on his religious beliefs that homosexuality is wrong, could be deemed “harassment, intimidation or bullying” if a school administrator determined that the student’s comment was motivated by his or her perception of another student’s religion or other listed characteristic and that it interfered with the student’s “educational benefits, opportunities or performance.” So, if a student says that another student’s words, that threatens no harm to person or property, makes it uncomfortable for him or her to be in the same classroom or even in the same school with his or her fellow student, then an administrator could say the offended student’s “educational benefits [or] opportunities“ are being “interfered with.”

Finally, the Metropolitan Nashville Public Schools’ (MNPS) current policy could lead to the same result. Its policy states:

The Administration of the Metropolitan Nashville Public Schools is committed to providing all students a learning environment free from discrimination/harassment based on race (actual or perceived), color, religion, national origin, handicap/disability, sexual orientation, ancestry, or

gender, including gender identity, expression and appearance.…

Definition(s)

Harassment, intimidation or bullying is defined as conduct, advances, gestures or words either written or spoken which result in:

Unreasonably interfering with a student’s educational opportunities

Creates a hostile, intimidating or offensive learning environment

Implies that submission to such conduct is made an explicit or implicit condition for receiving grades or credits

Physically harms a student

Damages a student’s property7

Under MNPS’s policy, a Christian student’s expression to the effect that the only way to Heaven is through Jesus, or a student’s expression based on his religious beliefs that homosexuality is wrong, could be deemed “harassment, intimidation or bullying” if a school administrator determined that it interfered with another student’s “educational opportunities” or created “a hostile, intimidating or offensive learning environment.”

6. I’ve heard that the Nashville schools are in the process of revising their policy. How will the revised policy affect a student’s expression of unpopular or politically incorrect views or of protected First Amendment rights?

The Metropolitan Nashville Public Schools is currently considering the adoption of a revised policy that has even greater potential to prohibit a student’s expression of unpopular or politically incorrect views or of protected First Amendment rights. It’s been reported that the policy will go before the MNPS School Board for approval sometime this spring. If adopted, its revised policy would provide:

A. Bullying is behavior that may reasonably be perceived by the targetor bystander observing the behavior as:

Because of an association with a person who has or is perceived to have one or more of these characteristics. …

B. Bullying as used in this policy and the MNPS Student Code of Conduct means a physical act or gesture or a verbal, written, or electronically communicated expression directed at one or more persons that:

Creates an actual and reasonable expectation that the conduct will:

a. Cause physical harm or emotional distress to a person or damage his or her property; or

b. Place a person in reasonable fear of physical harm, emotional distress, or damage to his or her property; or

Creates or is certain to create an intimidating, hostile educational environment for the person at whom the conduct is directed, such that it substantially interferes with or impairs the student’s educational performance.8

This proposed policy is ripe with opportunities for a school to suppress all unpopular, politically incorrect, and faith-based viewpoints.

7. Do Tennessee school districts currently have policies thatfocus on the characteristics of designated categories of victims as one of the elements in the definition of bullying?

Yes. As mentioned in a preceding FAQ, the Knox County (Knoxville) School District has a policy that places a focus on “… any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability;….”9 While its policy contains an alternative focus on “any other distinguishing characteristic,” those students who do not fall within the designated categories will likely not receive as much attention from a school administrator when it comes to assessing whether they are being bullied. And they may not be as willing to report acts of bullying against them, knowing that such an allegation might not be taken as seriously by school administrators. (See the following FAQ.)

Memphis City Schools has a similar policy that includes a focus on “any actual or perceived characteristic, including but not limited to, race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, a mental, physical or sensory disability, socio-economic or familial status….”10

8. Why shouldn’t anti-bullying policies focus on the characteristics of the victim? Isn’t bullying almost always directed at students who fall within such categories?

Several studies have reported that the number one reason why students are bullied is not the student’s race, religion, sexual orientation, gender identity or any of the other designated categories of victims in policies like those in Knox County and Memphis City Schools. It is physical appearance.12 In a 2008 study by the Virginia Youth Violence Project of 2,416 students in grades 3, 4 and 5, 48% reported being harassed “about how they look” and 35% “about their clothing.”13 Another study of 15,686 students in grades 6 through 10 reported that “[b]eing bullied through belittling one’s looks or speech was common for both sexes.”14 In an editorial at the beginning of a compilation of research articles on bullying, the editors stated: “Physical appearance (overweight, ‘the way my face looked’) and socio-familial context (‘who my friends were,’ ‘I was hot tempered’) were the most common factors reported by students as reasons for their victimization.”15

Further, bullying affects very large percentages of students. In the compilation of research articles on bullying, the authors noted that “[n]inety percent of rural middle school students and two-thirds of rural high school students said they had been bullied during their school careers.”16 And in a survey of 402 students in grades 6, 7, and 8, almost 50% of the students reported being bullied in the past month.17 Thus, with such high percentages of students being bullied, it is likely that many of them do not fall within one of the designated categories of victims.

Placing the emphasis on designated categories of victims in anti-bullying policies is counterproductive for several reasons:

First, as noted above, the typical victim categories often do not include the primary basis upon which students are bullied, their “looks” or physical appearance. A girl who is overweight or a boy with severe acne might be bullied horribly by their peers but neither would fall within the standard categories. Additionally, victim categories cannot encompass personality-driven characteristics that may lead to a student being bullied, such as being a shy, quiet boy.

Secondly, listing certain categories creates a system ripe for reverse discrimination, as it sends the message that those characteristics are more worthy of protection than others. This can politicize the school environment and introduce divisiveness among different groups of students. And it can cause a student who is being bullied, but who is not in one of the designated categories, to not report the bullying but instead just continue to endure the trauma.

Third, it shifts the focus from the actions of the bullies to their perceived thoughts. The focus should remain on the bully’s conduct and actions instead of school administrators speculating on what his or her thoughts might have been. It is the fact that someone is bullied, not why the “bully” did it, that matters most.

Fourth, as with “hate crime laws,” motives can be hard to prove. A student may assault or threaten assault of a fellow student because he wants the other student’s money, not because of the victim’s nationality, religion, or sexual practices. And to the victim, the issue is having been assaulted, period.

Fifth, since any student can be bullied for virtually any reason, trying to capture all categories of potential victims in a policy’s list of categories is like a dog chasing its tail. It will never end and inevitably, some victims of bullying will still be excluded from the designations.

9. Aren’t gay and lesbian children more susceptible to being bullied and shouldn’t they be given special protection in our schools?

Although homosexual activist groups with their own political agenda, along with many in the media, have created a perception that homosexual-related issues account for much of the bullying that occurs among children, the more objective research sources simply do not support that position. Neither does research published by the foremost homosexual organization involved in America’s schools, the Gay, Lesbian, and Straight Education Network known as GLSEN.

In 2008, GLSEN published a study 1,580 K-12 public school principals from across the U.S. that it had commissioned in conjunction with the National Association of Secondary School Principals.18 The study’s purpose was, in part, to explore “the perspectives of elementary and secondary public school principals on student bullying and harassment….” According to the study, “elementary school principals report that students at their school are very often or often bullied, called names or harassed for the following reasons”:

The way they look or their body size (19%);

How masculine or feminine they are (6%);

Their race/ethnicity (5%);

Their academic performance (4%);

“Being or people think they are gay, lesbian or bisexual (3%)”;

Their religion (1%);

Having an LGBT parent/family member (less than 1%).19

For middle school principals, 35% reported that students at their school are very often or often bullied, called names or harassed because of “the way they look or their body size” while 17% identified “how masculine or feminine they are.” The “because they are or people think they are gay, lesbian or bisexual” response received only 10%.20

In another study in which GLSEN participated, the New York City Department of Education found that 55% of bias-related incidents of harassment of students were gender-related, 21% were race/color-related, and only 13% were related to students’ perceived gender identity, gender expression, or sexual orientation.21

Results from another analysis that GLSEN was not involved in are even more revealing. In connection with a lawsuit over a homosexual curriculum imposed in elementary schools as part of an anti-bullying initiative, documentation obtained from the school district revealed that “of the approximately 170 incident reports in an 18 month period, there were no school incidents of harassment due to sexual orientation in the elementary grades. The vast majority of reported complaints … involved opposite-sex sexual harassment and racial tension, not sexual orientation.”22

10. Are there examples of anti-bullying policies being used to support and promote political agendas?

Yes. Anti-bullying (a/k/a ”safe school”) laws and policies, especially those that contain sexual orientation and gender identity categories like in some of Tennessee’s school district policies, have been used by LGBT (lesbian, gay, bisexual, and transgender) activist groups as a tactic to normalize same-sex marriage and promote homosexuality and transgenderism (e.g., cross-dressing) to children as young as elementary-school age.

In Alameda, CA, the school board mandated a curriculum for elementary schools that promoted homosexuality and same-sex marriage. In a publication for parents, school administrators first cited the school board’s “nondiscrimination/harassment” policy 5145.3 that contained designated categories including sexual orientation; a state education code that listed sexual orientation and gender identity in its anti-harassment policy; and a state law known as AB 537.\23 The district then justified this curriculum on the basis of those policies and laws:

Our work around creating safe schools is to ensure that all students, regardless of their sexual orientation or the sexual orientation of family members, feel safe in our schools…. This work is in accordance with legal mandates AB 537 Student Safety & Violence Prevention Act of 2000, Board Policy 5145.3 Nondiscrimination/Harassment, Ed Code Section 2000, and Penal Code Section 422.6(A). These [specific] laws and policies mandate that public schools prevent discrimination and harassment based on all legally protected categories.24

The curriculum included, among other things, the film, “That’s a Family!” While the film’s producers promote it as a tool for helping K-8 students learn about “the wide range of family structures,”25 in reality its purpose is to normalize and promote gay families. The film has young children discussing their particular families. While a few children talk about their single parent, stepparent, and mixed race parents, seven girls and boys talk about their same-sex “parents.” One boy says, “It’s really cool to have two gay dads…”; another boy talks about how “it is nice to have a mom that is a little bit more serious and a mom that’s more playful.” A girl talks about how her gay moms “love me a lot and they know that we have fun with each other.” Another girl tells everyone that her two dads are “cool” and “they’re the best dads ever.”26

While state or local educational policies often allow parents to opt-out their children from sex-ed or health classes, anti-bullying policies typically do not. LGBT activist organizations are well aware of this distinction, leading them to push curriculum touting homosexuality and same-sex “parents” as part of a school’s anti-bullying program.\27

11. Are there any other examples where anti-bullying policies have been used to promote political agendas?

Yes. When Iowa passed a homosexual-themed bullying law, local government education agencies began providing a training course for teachers called “How to Make My Classroom Safe for LGBT students.” The syllabi included screenings of the movie Brokeback Mountain as well as training related to books like And Tango Makes Three which promotes same-sex relationships to elementary kids. The “Rationale” given in the syllabi cited the state’s non-harassment and nondiscrimination laws based on sexual orientation and gender identity.28

In Massachusetts, when parents protested their elementary school children being given storybooks promoting gay marriage and homosexuality without their consent, a federal judge ruled against them. The judge began his opinion by noting that state law “prohibits discrimination in public schools based on sex or sexual orientation” and that “school curricula [must] encourage respect for all individuals regardless of, among other things, sexual orientation.” He then observed that “pursuant to these directives,” the state education department “encourage[s] instruction for pre-kindergarten through fifth grade students concerning different types of people and families.”29

Yes. In fact, Tennessee might be targeted soon. The largest LGBT activist organization in the country, the Human Rights Campaign (HRC), has launched a broad-based school curriculum called “Welcoming Schools.” In a publication entitled “A Look at Laws & Policies That Support Welcoming Schools,” the HRC singled out Knox County (Knoxville) schools as having an anti-bullying policy supportive of the Welcoming Schools curriculum.30

One of the Welcoming Schools lesson plans for K-6 grades is the film, “That’s a Family!” (See prior FAQ.) Another lesson plan for grades 1-3 is a “Family Diversity Photo Puzzle” in which children are given puzzle pieces depicting photos of people and told to arrange them into seven families. After they begin, they find that they must create some families of the same gender and make decisions about labeling adults as two mothers.31 A Welcoming Schools “Guide” lists DVDs and videos on LGBT topics that includes the film, “It’s Elementary: Talking About Gay Issues in School.”32 The film, shot in first through eighth grade classrooms across the U.S., is recommended for teachers and middle and high school students.33 Among other aspects promoting homosexuality, it features a school-wide “Lesbian and Gay Pride Day” as well as a “Gay Pride Assembly.”34

13. Aren’t you just trying to minimize the seriousness of bullying in order to protect students who are intolerant of certain categories of students?

No. FACT strongly believes that student harassment and bullying is a widespread, serious problem in our schools that needs to be firmly addressed. With many students having access to the Internet, the proliferation of online social networking, and the opportunity for greater anonymity when using such tools, bullying has become an even more serious issue.

The answer is not, however, to close off the opportunity for students to express different or unpopular viewpoints on issues facing our society in a respectful, non-harassing manner. Indeed, better understanding of the differences among us only comes when all viewpoints are expressed freely and openly. Nor is the answer to bar students from their constitutional right to express faith-based viewpoints, or to lay a platform for advancing political agendas. And focusing on categories of victims instead of on the conduct of the bully ends up providing less, not more, protection for all children.

The goal must be to provide the best protection for all students from all bullies, while at the same time protecting and encouraging the open, honest, and respectful expression of different viewpoints by students. It is at such times that the educational process achieves one of its greatest purposes.

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